{ "id": 8561345, "name": "MRS. AMY McCULLOH, Widow and Administratrix of the Estate of JOHN L. McCULLOH, Deceased v. CATAWBA COLLEGE and EMPLOYERS MUTUAL CASUALTY COMPANY", "name_abbreviation": "McCulloh v. Catawba College", "decision_date": "1966-02-04", "docket_number": "", "first_page": "513", "last_page": "518", "citations": [ { "type": "official", "cite": "266 N.C. 513" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "101 S.E. 2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628211 ], "opinion_index": 0, "case_paths": [ "/nc/247/0661-01" ] }, { "cite": "80 S.E. 2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627772 ], "opinion_index": 0, "case_paths": [ "/nc/239/0547-01" ] }, { "cite": "132 S.E. 2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574993 ], "opinion_index": 0, "case_paths": [ "/nc/260/0413-01" ] }, { "cite": "179 S.E. 799", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598698 ], "opinion_index": 0, "case_paths": [ "/nc/208/0186-01" ] }, { "cite": "139 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "4 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "896" } ], "opinion_index": 0 }, { "cite": "216 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599632 ], "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc/216/0306-01" ] }, { "cite": "169 S.E. 160", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622242 ], "opinion_index": 0, "case_paths": [ "/nc/204/0571-01" ] }, { "cite": "195 S.E. 791", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627879 ], "opinion_index": 0, "case_paths": [ "/nc/213/0320-01" ] }, { "cite": "19 S.E. 2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "221 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627018 ], "opinion_index": 0, "case_paths": [ "/nc/221/0203-01" ] }, { "cite": "79 S.E. 690", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "699" } ], "opinion_index": 0 }, { "cite": "163 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272100 ], "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc/163/0431-01" ] }, { "cite": "110 S.E. 2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622450 ], "opinion_index": 0, "case_paths": [ "/nc/251/0069-01" ] }, { "cite": "176 S.E. 572", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "207 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624960 ], "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0253-01" ] } ], "analysis": { "cardinality": 683, "char_count": 14447, "ocr_confidence": 0.571, "pagerank": { "raw": 2.179056630711662e-07, "percentile": 0.7720905736203153 }, "sha256": "2f033a90695e47232488fc4047e053e8456d0e07374ea9b0a922ad2891abc63f", "simhash": "1:742da04930dfc4f2", "word_count": 2464 }, "last_updated": "2023-07-14T18:16:51.556627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. AMY McCULLOH, Widow and Administratrix of the Estate of JOHN L. McCULLOH, Deceased v. CATAWBA COLLEGE and EMPLOYERS MUTUAL CASUALTY COMPANY." ], "opinions": [ { "text": "SHARP, J.\nThe first question to be considered is whether, under the facts presented, the judge had authority to grant defendants\u2019 motion for a rehearing on the grounds of newly discovered evidence.\nAfter an appeal from an award of the Industrial Commission has been duly docketed in the Superior Court, the judge \u201chas the power in a proper case to order a rehearing of the proceeding by the Industrial Commission on the ground of newly discovered evidence, and to that end to remand the proceeding to the Commission.\u201d Byrd v. Lumber Co., 207 N.C. 253, 255, 176 S.E. 572, 573. (Italics ours.) Accord, Moore v. Stone Co., 251 N.C. 69, 110 S.E. 2d 459. The burden is upon the applicant for such a rehearing to rebut the presumption that the award is correct and that there has been a lack of due diligence. He makes out \u201ca proper case\u201d for the granting of a new hearing upon the ground of newly discovered evidence only when it appears by affidavit:\n\u201c(1) That the witness will give the newly discovered evidence; (2) that it is probably true; (3) that it is competent, material, and relevant; (4) that due diligence has been used and the means employed, or that there has been no laches, in procuring the testimony at the trial; (5) that it is not merely cumulative; (6) that it does not tend only to contradict a former witness or to impeach or discredit him; (7) that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail.\u201d Johnson v. R. R., 163 N.C. 431, 453, 79 S.E. 690, 699.\nHere, defendants have failed to meet requirements (4), (6), and (7) above. Dr. Rendleman had given his opinion as to the percentage of McCulloh\u2019s disability at the September 1963 hearing. This evidence had been transcribed and was available to defendants\u2019 regular counsel when Dr. Davis testified at the hearing in Winston-Salem in February 1964. At that time, counsel had every opportunity to question him on all aspects of plaintiff\u2019s claim, but Dr. Davis was not asked for his opinion as to the degree of Mc-Culloh\u2019s permanent disability. Furthermore, the opinion which Dr. Davis expressed in his letter, that McCulloh had only a 25% disability in his left extremities, merely contradicts Dr. Rendleman\u2019s opinion that the disability was 60% and 100% respectively. Finally, Dr. Davis\u2019 opinion is not evidence of such a nature as to show that on another hearing a different result would probably be reached so that \u201cright will prevail.\u201d Since the Commission, the ultimate fact-finding body in this case, considered Dr. Davis\u2019 letter before it denied defendants\u2019 motion based upon it, there is scant reason to believe that a different result would probably be reached if a rehearing were granted. Moore v. Stone Co., supra.\nBefore an applicant who moves for a new trial upon the grounds of newly discovered evidence may invoke the discretionary power of the Superior Court, he must meet the seven requirements set out in Johnson v. R. R., supra. Moore v. Stone Co., supra; Sanger v. Gattis, 221 N.C. 203, 19 S.E. 2d 625; Bullock v. Williams, 213 N.C. 320, 195 S.E. 791; Byrd v. Lumber Co., supra; Crane v. Carswell, 204 N.C. 571, 169 S.E. 160. We conclude, therefore, that the Superior Court was without jurisdiction to allow defendants\u2019 motion and that the Commission\u2019s denial of it may not be held for error. The rules of the Industrial Commission (adopted under G.S. 97-80) \u201crelative to the introduction of new evidence at a review by the Full Commission, are in accord with the decisions of this Court as to granting new trials for newly discovered evidence.\u201d Tindall v. Furniture Co., 216 N.C. 306, 311, 4 S.E. 2d 894, 896. Accord, Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E. 2d 857; Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799.\nThe next question is: Did the judge err in refusing to sign the judgment tendered by plaintiff; The answer is Yes.\nThe Commission\u2019s findings of fact that the accident on June 19, 1962, caused deceased to sustain a 60% permanent loss of the use of his left arm and a 100% loss of the use of his left leg are indubitably supported by the testimony of Dr. Rendleman. Therefore, this finding of fact, the basis of defendants\u2019 first exception on their appeal from the Full Commission to the Superior Court, is binding upon the Superior Court and upon us. Pardue v. Tire Co., 260 N.C. 413, 132 S.E. 2d 747. Defendants\u2019 second exception, \u201cthat said order has no basis in law and is contrary to law,\u201d is broadside. It presents only the question whether the facts found support the judgment. Worsley v. Rendering Co. and Sugg v. Rendering Co., 239 N.C. 547, 80 S.E. 2d 467.\nMcCulloh\u2019s right, under G.S. 97-29, to compensation \u201cfor indeterminate weeks\u201d as a result of his fall on June 19, 1962, had been conceded by defendants, who had paid compensation for 24 of the 29 weeks which elapsed between his fall and his death. Compensation which accrues under G.S. 97-29 during the lifetime of an injured worker but is unpaid at his death becomes an asset of his estate. Inman v. Meares, 247 N.C. 661, 101 S.E. 2d 692. The award of compensation at $35.00 per week to the plaintiff as administra-trix of McCulloh during the period between his injury and his death, with credit for the amount paid to him during his lifetime, is supported both by unchallenged findings of fact and by the law.\nUnder G.S. 97-31(13), (15), and (19), McCulloh was entitled to compensation for a total of 332 weeks for the loss of use of his left arm and leg. G.S. 97-37 provides that when an employee who is entitled to compensation for an injury covered by G.S. 97-31 dies from any other cause than the injury for which he is entitled to compensation, payment of the unpaid balance of compensation shall be made first \u201cto the surviving whole dependents.\u201d Plaintiff, as his widow and sole dependent, was entitled to the full compensation, since none had been paid decedent.\nThe judgment of the court below is vacated, and the cause is remanded for entry of judgment overruling defendants\u2019 exceptions and affirming the award of the Full Commission.\nError and remanded.", "type": "majority", "author": "SHARP, J." } ], "attorneys": [ "Spry, Hamrick and Doughton and W. Scott Buck for plaintiff appellant.", "Nelson Woodson and Max Busby for defendant appellees." ], "corrections": "", "head_matter": "MRS. AMY McCULLOH, Widow and Administratrix of the Estate of JOHN L. McCULLOH, Deceased v. CATAWBA COLLEGE and EMPLOYERS MUTUAL CASUALTY COMPANY.\n(Filed 4 February, 1966.)\n1. Master and Servant \u00a7\u00a7 82, 93\u2014\nA letter from a medical expert containing an opinion as to the degree of disability suffered by claimant at a much lower percentage than testified to by another expert at the hearing, and which the employer could have brought out at the hearing, does not constitute a proper predicate for an order of the Superior Court remanding the case to the Industrial Commission for a rehearing for newly discovered evidence.\n2. Master and Servant \u00a7 93\u2014\nWhere the Industrial Commission\u2019s findings as to the degree of permanent disability suffered by claimant as a result of injury are supported by the testimony of an expert witness before the Commission, the findings are conclusive on appeal, and upon the death of the employee from other causes his personal representative is entitled to recover for the benefits accrued but not paid at the time of his death, G.S. 97-29, and his sole dependent is entitled to recover for the unpaid balance of the benefits for permanent disability. G.S. 97-37.\n3. Master and Servant \u00a7 94\u2014\nAn exception to the award of the Industrial Commission on the ground that it is contrary to law is a broadside exception and presents only whether the facts found by the Commission support the award.\nAppeal by plaintiff from Gwyn, J., May 17, 1965 Civil Session of Rowan.\nProceeding under the Workmen\u2019s Compensation Act. Plaintiff is the widow and sole dependent of the deceased employee. She is also his administratrix.\nPrior to June 19, 1962, for an average weekly wage of $77.00, John L. McCulloh, 57-year-old electrician, had been employed by Catawba College for more than a year without missing any time due to illness or accident. On that day, while at work, a ladder \u201cbuckled up under him,\u201d and he fell across a chair. Although he was in great pain and unable to sleep, he continued to report for work and did not seek medical advice until June 22, 1962, when X rays revealed the fracture of three ribs on his left side. A rib support failed to lessen his pain or to permit him any sleep. On June 25, 1962, he was hospitalized with extremely high blood pressure and pneumonia. Additional X rays revealed that five additional ribs on the left had been fractured. In the hospital, he suffered a cerebral hemorrhage which affected his left arm and leg.\nWhen McCulloh left the hospital, on July 9, 1962, his blood pressure had returned to normal. By August 23, 1962, his ribs had healed. His left arm remained weak, and he dragged his left leg. This condition never improved, nor was he ever able to return to work. On November 25, 1962, he was admitted to the Baptist Hospital at Winston-Salem for the removal of a cancerous kidney. He recovered satisfactorily from this operation and was discharged on December 5, 1962. Two days later, on December 7, 1962, following a second cerebral hemorrhage, he was readmitted. This stroke ultimately caused his death on January 6, 1963. All the doctors agreed that this second vascular accident did not result directly from his injury by accident on June 19, 1962.\nBy stipulation dated August 17, 1962 (about two weeks after the accident), McCulloh and defendants agreed, with the approval of the Commission, that defendants would pay him compensation at the rate of $35.00 per week for an undetermined period beginning June 20, 1962. A total of $840.00 was paid over a period of 24 weeks under this agreement. On June 17, 1963, plaintiff, as widow and ad-ministratrix of McCulloh, filed her claims for additional compensation. The case was heard on September 12, 1963, in Salisbury and on February 17, 1964, in Winston-Salem. At the September hearing, Dr. David A. Rendleman, Jr., witness for plaintiff, testified that, in his opinion, McCulloh\u2019s pain and loss of sleep following his fall from the ladder caused an elevation of blood pressure which, in turn, caused the first cerebral hemorrhage with resulting \u201cleft-sided weakness.\u201d It was also Dr. Rendleman\u2019s opinion that, when McCulloh left the hospital on July 9th, he had suffered a 60% permanent loss of the use of his left arm and 100% loss of the use of his left leg. At the February hearing, Dr. W. H. Boyce, urologist, and Dr. Court-land H. Davis, neurologist, both of the staff of Bowman Gray School of Medicine, testified for defendant. It was Dr. Boyce\u2019s opinion that McCulloh\u2019s fall was more likely a result of preexisting central arteriosclerosis and vascular disease than a cause of it. Dr. Davis, who first saw McCulloh on November 21, 1962, was of the opinion that his arteriosclerosis was \u201cof long standing\u201d and that his fall on June 19th \u201cwas an aggravating feature\u201d in the production of the thrombosis which caused his first vascular accident. Although Dr. Davis testified that he had observed McCulloh\u2019s \u201cleft-sided weakness,\u201d counsel did not ask him for his opinion as to the percentage of disability which McCulloh had suffered as a result of it. Because of the illness of defendants\u2019 regular counsel, different attorneys represented defendants at the first hearing. Between the two, however, the evidence taken at the September hearing had been transcribed.\nThe hearing commissioner filed his opinion on May 22, 1964. He found, in accordance with Dr. Rendleman\u2019s testimony, that Mc-Culloh\u2019s first stroke, or vascular accident, resulted from his injury by accident on June 19, 1962; that the accident caused him to be disabled from then until January 6, 1963, the date of his death; and that the accident had caused him to sustain a 60% permanent loss of the use of his left arm and 100% loss of the use of his left leg. Based on these findings, he held plaintiff, as administratrix, entitled to compensation for McCulloh\u2019s temporary total disability from June 25, 1962, until his death on January 6, 1963, at the rate of $35.00 per week. From this award the sum of $840.00 previously paid was ordered deducted. He also held plaintiff, as widow, entitled to compensation at the rate of $35.00 per week for a period of 332 weeks beginning January 6, 1963, to cover the permanent loss of use of deceased\u2019s left arm and left leg, compensation, however, not to exceed $10,000.00. Fler claim for death benefits was denied.\nDefendants appealed to the Full Commission, contending that the findings were not supported by the evidence and were against its greater weight and that the conclusions of law were \u201cerroneous.\u201d They moved \u201cthat it hear additional evidence on the question of the extent of decedent\u2019s disability.\u201d The motion was based upon a letter which Dr. Davis had written to defendants\u2019 counsel on August 19, 1964, in response to an inquiry as to the percentage of McCulloh\u2019s disability. Dr. Davis wrote: \u201cYour letter of July 8, must be answered from records which are available to you. ... I would estimate the impairment of function at about 25 percent of the left upper and left lower extremities.\u201d The Full Commission denied the motion for a further hearing and adopted the opinion and award of the hearing commissioner.\nDefendants appealed to the Superior Court for that: (1) The Commission\u2019s \u201cfindings of fact as to permanent injury to the left arm and left leg of the claimant\u201d are not supported by competent evidence; (2) its order is \u201ccontrary to law\u201d; and (3) it erred in refusing \u201cto allow defendants another hearing to produce additional medical testimony.\u201d When this appeal was heard in the Superior Court, plaintiff tendered judgment overruling each of defendants\u2019 exceptions and affirming the award of the Commission. Judge Gwyn declined to sign the tendered judgment. Instead, he treated the letter which Dr. Davis wrote counsel for defendants on August 19, 1964, as newly discovered evidence, set aside the order of the Full Commission, and remanded the cause \u201cso that the defendants may introduce and have their additional or newly discovered evidence considered.\u201d From this order plaintiff appeals, assigning as error the refusal of the court to sign the tendered judgment and his order remanding the case for further hearing.\nSpry, Hamrick and Doughton and W. Scott Buck for plaintiff appellant.\nNelson Woodson and Max Busby for defendant appellees." }, "file_name": "0513-01", "first_page_order": 549, "last_page_order": 554 }